Mason v. StateMason v. State
Lead Opinion
This сontroversy over the ownership of land underlying an abandoned highway across appellant’s property presents two questions: (1) When the State acquired the disputed strip by warranty deed, did it acquire a fee simple interest or only an easement? and (2) Does the abutting landowner (appellant) have a private easement along some part of the abandoned highway?
Appellant conveyed the land in question to the State by warranty dеed in 1951. The deed described a strip of land across appellant’s property. Highway 191 was thereafter constructed across this strip of land. In 1976, after a new freeway was constructed, the State formally abandoned Highway 191, informing appellant that if he did not buy the strip of land for $3,675, it would be sold to a third person. Appellant paid the sum to the State under protest. About that time, the State tore up and destroyed portions of the abandoned highway. Appellant had used this highway for over 20 years to travel to Plymouth on the south and to Malad, Idaho, on the north.
In 1978, after filing notice with the State pursuant to U.C.A., 1953, § 63-30-12, appellant brought this action seeking (1) a judgment against the State for the return of his $3,675, plus interest, as well as an order restraining the State from conveying the disputed strip to any third party, and (2) a judgment requiring the State to restore the portions of Highway 191 that had been impaired, torn up, or blocked. The district court granted the State’s motion to dismiss both causes of action, and this appeal followed.
I. CONVEYANCE OF FEE SIMPLE OR EASEMENT
Appellant’s claims for return of the $3,675 purchase price and a restraining order are based on the contention that in 1951 the State acquired only a right-of-way, not a fee simple interest, in the disputed strip. This contention relies on two statutes in effect in 1951.
The first, U.C.A., 1943, § 104-61-2, is part of the chapter on eminent domain. It states in pertinent part:
*467 The following is a classification of thе estates and rights in lands subject to be taken for public use:
(1) A fee simple, when taken for [purposes unrelated to the instant case].
(2) An easement, when taken for any other use. [Emphasis added.]
Since the disputed strip was conveyed to the State by warranty deed, it was not “taken for public use” within the meaning of this statute having to do with condemnation proceedings and eminent domain. Consequently, this statute does not direct the outcome of this case.
Appellant also rеlies on a statutory provision in the chapter on “Highways,” U.C.A., 1943, § 36-1-7. This section, which was repealed in 1963 but which was in effect at the time the disputed land was acquired, states:
By taking or accepting land for a highway the public acquires only the right of way and incidents necessary to enjoying and maintaining it.1 [Emphasis added.]
Appellant argues that under this section the State was statutorily incapable of acquiring a fee simple interest in land “for a highway” and therefore only acquired an easement under appellant’s 1951 warranty deed.
The key issue on the applicability of § 36-1-7 is the meaning of “accepting.” Appellant argues that “accepting” should be read broadly to embrace the receipt of a deed in a negotiated purchase. The State contends that in this context the word “accepting” should be construed to refer solely to accepting land dedicated by usage as a highway. Neither party cites any Utah precеdents conclusively construing this statute on the issue before us.
The history recited in Justice Howe’s concurring opinion is persuasive evidence that the word “accepting” in the quoted sentence of U.C.A., 1943, § 36-1-7, was intended to refer only to highway lands received by dedication. As to highway lands received in that manner, the statute was therefore declaratory of the common law: the original owner retained the fee, and the public acquired only an easement. Barclay v. Howell’s Lessee,
II. ABUTTING LANDOWNER’S EASEMENT OVER ABANDONED HIGHWAY
Appellant’s second cause of action alleged that he “has used [Highway 191] continu
Except where changed by statutes pertaining to limited access highways, U.C.A., 1953, § 27-12-2(5), § 27-12-111,
This private easement of access has been held to survive the abandonment or vacation of the public highway. Adney v. State Road Commission,
The State suggests two other possible grounds to support the dismissal of appellant’s second cause of action: (1) newly constructed roads provide appellant equal or better access to his property, and (2) appellant has alrеady received compensation for any loss of access to his property. Both these grounds raise issues of fact and therefore cannot support a dismissal, which requires a showing “that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim.” Christensen v. Lelis Automatic Transmission Service, Inc., supra. Both these defenses remain for consideration on remand.
Since this cause of action must be remanded for further proceedings, we deem it аppropriate to clarify the nature and extent of the abutting landowner’s easement of access and its relation to the rights of other property owners along the way. We limit our comments to matters that are likely to be germane in the resolution of this controversy.
Hague v. Juab County Mill & Elevator Co., supra, held that the enlargement of a flume between the abutting property and a partially abandoned public street violated the property owner’s right to “a reasonably convenient passageway” from his property to the street.
While the public may abandon a street or highway in so far as it affects the rights of the public therein, such an abandonment, however, will not affect the rights of the abutting owner with respect to the*469 use of an easement he may have in the street for the purposes of ingress and egress to and from his premises.
In Adney v. State Road Commission, supra, the State, as part of the construction of a new highway, had attempted to abandon a 3.72-mile segment of old highway near the town of Corinne, and to remove its bridge over the Bear River. Although the new highway would afford the general traveling public better access through the area, farmers whose lands abutted the old road objected to the removal of the bridge because this would deprive them of reasonablе access to Corinne. This Court concluded that the plaintiffs could maintain their action because they had established “such a special damage as is different in kind and not merely in degree from that which will be suffered by the general public....”
[T]he evidence shows and the court found that the old road was necessary for ingress and egress to and from the farms owned and occupied by the individual plaintiffs and others abutting the old road east of the bridge, and that without the bridge they had no means of ingrеss and egress to and from their farms, or to Corinne city ... except as they [backtrack] ... a distance of several miles. [Emphasis added.]
The property owner has the right to reasonable access to the public streets but no property right that his travel from his land to his destination or the public’s travel to his property shall be in the most direct route possible.
Our interpretation of the abutting landowner’s easement of access as being subject to precedent requirements of reasonableness in the circumstances accords with what we consider the better-reasoned opinions on this subject. E.g., Rexroat v. Thorell,
Notes
. In contrast, the current provision, enacted in 1963, provides that title to real property acquired by “purchase, condemnation, or otherwise, for highway rights of way or other highway purposes, may be in fee simplе or any lesser estate or interest.” U.C.A., 1953, § 27-12-101.
. This section has been construed in three opinions of this Court, but none resolves the present issue. White v. Salt Lake City,
. See generally, Note, “Freeways and the Rights of Abutting Owners,” 3 Stan.L.Rev. 298 (1951).
. The abutting owner’s right of access is not a prescriptive easement. A prescriptive easement cannot arise over land while it is subject to public use, since use in common with the general public is regarded as permissive. Thurman v. Byram, Utah,
Concurrence Opinion
(concurring):
I concur in the majority opinion. I believe thаt the word “accepting” found in U.C.A., 1943, § 36-1-7 has a special and limited meaning as used there and has nothing to do with the acceptance of warranty deeds.
“Accepting” as used there means acceptance by the public of a common law dedication for a highway made by the owner of the fee. Acceptance is a necessary element of dedication. This is well explained in 26 C.J.S., Dedication, § 34(a) (1956) at 459, where it is written:
A dedication at common law, like a contract, consists of an offer and acceptance; and subject to some exceptions considered below, the general rule is well settled that a dedication is not binding and conclusive on either party until acceptance, and, of course, this rule applies to the grantee of the party offering to make the dedication. A dedication without acceptance is, in law, merely an offеr to dedicate, and such offer does not impose any burdens or confer any rights. Until acceptance, the public acquires no rights, and is subject to no duties by reason of the dedication.
Many of the early roads established in the Territory of Utah were created simply by adjoining owners of land setting their fences back so that a passageway was created for public travel. Hall v. North Ogden City,
You are further instructed that it is not necessary that a dedication be made by deed or other special form; nor is any special form of acceptance оf such dedication necessary to be made. It is solely a question of intent on the part of the person to dedicate, and on the part of the public to accept. If, therefore, you believe from the evidence that the road in controversy was used by the public as a road, with the knowledge of the plaintiff or his grantor, or other persons claiming the property now claimed by the plaintiff, without objection by such person so claiming the same, with intention to appropriate the same as a public road, and that Salt Lake County has expended money in repairs and improvements of the same, then you are instructed that this evidence may be received by you as tending to show a dedication to and acceptance by the public for road purposes. (Italics added.)
Again, in Wilson v. Hull,
‘It has been said that dedication to be effectual must be accepted, and this acceptance may be either of a part or of the whole of the land appropriated. Such acceptance may undoubtedly be made by a formal act of the body charged with repairing the highway, or by any act on its part sufficiently implying its acceptance; but whether such acceptance may be made by the public generally, as evidenced by a mere use of the way, is a question upon which the decisions have not been entirely uniform.’ (Italics added.)
The court then observed thаt in the Utah Territory there was no statute requiring a formal acceptance by officers or agents in charge of public roads of land dedicated by owners for highways, and the court held that acceptance could be inferred under some circumstances from the action and use of the public generally without any action
It was in this era in the settlement of our state when common law dedication of land for public roads was commonplace that § 36-1-7 was enacted. Its genesis is 1880 Utah Laws, § 6, Chapter XXIX. So far as this writer has been able to determine, this chapter was the first legislative expression on the subject of public highways in the Territory. Other sections of Chapter XXIX defined public highways, declared certain roads to be public highways, рermitted sidewalks to be built and trees to be planted thereon, gave rights-of-way for utilities, and provided for the appointment of road supervisors to maintain the highways supported by a poll tax of two days’ work of 8 hours each or $3.00 annually to be paid by every able-bodied man over 21 and under 60 years of age. The first sentence of § 6 reads the same as the first sentence of U.C.A., 1943, § 36-1-7. The second sentence of § 6 has undergone some change of wоrding but the intended meaning has remained the same. Section 6 as originally enacted read:
By taking1 or accepting land for a highway, the public acquire[s] only the right-of-way and incidents necessary to enjoying it and maintaining it. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil in front to the centre of the highway.
Thus, it appears that the intent of § 6 was to provide that by accepting the dedication of land fоr a highway, the public acquired only the right-of-way and incidents necessary to enjoying and maintaining it. The fee remained in the dedicator. He could continue to make any use of the dedicated land which was not incompatible with the public easement. Whitesides v. Green,
In 1951, § 36-1-7 was not the exclusive expression by the Legislature on how the public may acquire property for highways. U.C.A., 1943, § 78-5-4 (now U.C.A., 1953, § 57-5 — 4) provided that when the owner makes a dedication by use of a map or plat, the recording thereof vests in the public the fee to the streets, alleys and public places shown thereon. This statute was enacted in 1890 (1890 Utah Laws, § 4, Chap. L.) аnd co-existed for over 73 years with § 36-1-7 which as we have seen was enacted 10 years earlier. We held in Oregon Short Line R.R. Co. v. Murray City,
There was also in 1951 another statute vesting fee title to highway land in the public. U.C.A., 1943, § 78-1-11 (U.C.A., 1953, § 57-1-12) prescribing the form of a warranty deed set out the form to be used and provided: “Such deed when executed as required by law shall have the effect of a conveyance in fee simple to the grantee, his heirs and assigns of the premises therein
It is a familiar rule of construction that courts will attempt to give two or more statutes which ostensibly conflict an interpretation that will give meaning and effect to each of them. It is also a rule that when a word of doubtful or ambiguous meaning appears in a statute it will be given a restricted interpretation. The application of both of these rules leads us to defining “accepting” as found in § 36-1-7 to mean accepting a common law dedication made by an owner. This construction gives meaning to that statute but does not impinge upon other ways that land for highways may be acquired by the public, viz., recording of plat or map, or purchase by warranty deed, in which cases fee title vests in the public.
Prior to 1935, California had a statute (Sec. 2631, Political Code) similar to our § 36-1-7. It provided:
By taking or аccepting land for a highway, the public acquire[s] only the right-of-way, and the incidents necessary to enjoying and maintaining the same, subject to the regulations in this and the Civil Code provided.
In People by Dept. of Public Works v. Thompson,
In the instant case, the deed executed and delivered by the appellant and his wife in 1951 to the State Road Commission of Utah was entitled “Warrаnty Deed” and was in the statutory form prescribed by U.C.A., 1943, § 78-1-11. Furthermore, the deed, by its language, “conveys and warrants in fee simple to the State Road Commission of Utah.” Even under the California decisions, the presumption that a right-of-way was intended would be overcome by this clear language and a fee title would pass.
I think any statute which purports to deny the sovereign State of Utah and its political subdivisions the right to acquire the fee title to land by the statutory form of warranty deed should clearly express that intention, and such intention should not be lightly presumed by this Court.
. It is not clear whether “taking” meant taking by condemnation since this writer has been unable to find any statutory enactment on the subject of eminent domain before 1884. See Title VII, Part III of the Code of Civil Procedure enacted as Chapter LV, Laws of Utah 1884.
. In a dissenting opinion written by Justice Edmonds and concurred in by Justice Traynor, they concluded that the word “accepting” meant accepting a dedication.